Co-operative & Commerce Bank (Nigeria) Plc V. Mrs. Amadi Rose U. & Ors (1988)
LawGlobal-Hub Lead Judgment Report
UBAEZONU, J.C.A.
The plaintiffs/respondents (hereinafter called “the respondents”) sued the appellant Bank for the sum of N1, 649,290,40 being sundry claims by various individuals as specified in the schedule attached to the statement of claim. The schedule is headed “Schedule of claims of C.C.B. Retired (Junior Staff) under to years”. The claimants were originally 15 in number before objection was taken as to the competence of the suit. The names of 2 persons were struck out leaving 13 names. The claim as averred in the statement of claim at page 5 of the record of appeal reads as follows:”
Wherefore the plaintiff claims as follows:
- The sum of N1, 649,290.40 (One Million, Six Hundred and Forty-nine Thousand, Two Hundred and Ninety Naira and Forty Kobo only) in favour of the plaintiffs against the defendant being balance of the gratuities, value of earned leave and transport entitlements due to the plaintiffs from the defendant upon the compulsory lay-off of the plaintiffs by the defendant.
- Interest on relief one above at the rate of 21 % per annum from 2nd day of May, 1994 till date of judgment and thereafter at the rate of 5% till the judgment is finally liquidated.”
The schedule referred to in paragraph 5 of the statement of claim as Annexure is at page 6 of the record of appeal.
The respondents were the staff of the appellant bank in different cadres. They were employed in the bank at different times to different offices with different salaries and different conditions of service. The action arose as a result of their compulsory retirement or retrenchment.
On being served with the statement of claim, the appellant filed a motion to strike out the suit for misjoinder of parties and causes of action. The motion was duly heard. On 28th February, 1995, the learned trial Judge delivered her ruling in which she dismissed the application. Dissatisfied with the said dismissal, the appellant has appealed to this court on three grounds of appeal. The appellant has also filed its brief of argument which was duly served on the respondents. The respondents failed to file any brief. The appellant brought a motion to hear the appeal on the appellant’s brief only since the respondents have failed to file a brief of argument. When the motion came up for hearing on the 19th May, 1997, the 1st respondent said that she conceded to the appeal being allowed in respect of herself. The appeal as it concerned the 1st respondent was accordingly allowed. Learned counsel for the appellant Chief Ugolo moved his motion to hear the appeal on his appellant’s brief only. The motion thus moved was granted as it concerned the 2nd, 3rd and 4th respondents. Hearing of the appeal was accordingly adjourned, and fresh hearing notices issued to 2nd, 3rd and 4th respondents.
In his brief, the appellant formulated three issues for determination vis:-
“(a) Whether the learned trial Judge was not in error when in dismissing the appellant’s motion he held that Order 3 rules 3 and 4 applied to the case without considering Order 3 rule 8 under which the application to strike out the suit was brought.
(b) Whether the Learned Trial Judge was not in error when he held that the suit was a representative action and not bad for misjoinder.
(c) Whether the Learned Trial Judge was not in error when he struck out the names of Epundu Joseph and Nsofor Brown from Annexure A, and held that the remaining 13 plaintiffs have a common interest, common grievance and common relief beneficial to all concerned.”
Learned counsel argued issues (a) and (b) together in his brief. He submits that he brought his motion in the lower court to strike out the suit under Order 3 Rule 8 of the High Court Rules of Anambra State applicable in Enugu State. According to counsel, Annexure A attached to the statement of claim gives the names, designations, years of service, entitlements based on basic salary, balance of claims on total emolument, value of earned leave, accrued salaries within leave period, transport allowances of 15 persons who are supposed to be the plaintiffs in this suit. It is submitted that the motion comes clearly within the purview of Order 3 Rule 8. It is further submitted that the suit is not a representative action as nobody gave any authority to any person. Counsel refers to Busai v. Osenni (1992) 4 NWLR (Pt. 237) 557; and Nwanguma v. Ikyaande (1992) 8 NWLR (Pt. 258) 192 at 200 – 201 and submits that since the respondents have no common interest or common grievance an action in a representative suit cannot be maintained. Counsel refers to Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24 at 55; Adewoyin & ors v. Adedibu & ors (1958) WRNLR 145; Itumo & ors v. Anyim & ors. (1960) 4, E. NLR 48; Okafor & ors v. Nnaife (1973) 3 SC 85, at 94- 96.
On the third issue, the appellant complains about the striking out of the names of two of the persons whose names appear on Annexure A i.e. Epundu Joseph and Nsofor Brown. In court learned counsel urges us to allow the appeal and set aside the ruling of the lower court and strike out the suit.
Let me dispose of the third issue in this appeal. The third issue is of no relevance to the success or failure of this appeal. Beside the court’s wide powers of amendment under Order 18 of the High Court Rules of Anambra State 1988, the lower court had the powers to do what it did under Order 3 Rule 7. It provides:
“7. The court may, at any stage of the proceedings, and on such terms as appear to the court to be just, order that the name or names of any party or parties, whether as plaintiffs or defendants, improperly joined, be struck out”.
This was what the lower court did on the application of respondent’s counsel. The striking out of the names of the two persons is a non issue in this appeal.
I now come to the important issues in this appeal viz issues (a) and (b) in the appellant’s brief of argument. Four named persons – Mrs. Arnadi Rose, Epundu Joseph, Humphrey Eze and Patrick Enedeanya purported to sue “for themselves and on behalf of other 11 employees of the defendant retired or retrenched by the defendant”. Each of these 15 persons was employed on a different date as can be seen from the Annexure A attached to the statement of claim and already referred to in this judgment. Each had his/her conditions of service which conditions are personal to him/her. The cadre of each is different from another. Their years of service are different. Their entitlements based on their basic salary are different. The balance of their claims based on their total emolument is different, one from another. The value of their earned leave is different, one from another. Their six months salary in lieu of notice of retirement differs from each other. Their accrued salary within leave period is different from one another. Their transport allowances are different from one another. Their expected claims are also different. All these are borne out by Annexure A which is attached to the statement of claim and forms part of it. I say without equivocation that there can be no better example of misjoinder of parties and causes of action as is presented in this case. Each of the 15 or 13 persons for whom the named plaintiffs purported to sue for has his/her own cause of action which cannot be joined with another. The locus classicus in misjoinder of parties or causes of action is the celebrated case of Amachree & ors v. Newington, 14 WACA 97. In that case, the nine appellants as co-plaintiffs sued the respondent claiming a single amount as damages for assault and false imprisonment. At the end for the case the trial Judge non-suited the plaintiffs on the ground that it could not be said that they had jointly together a ground for instituting a suit for the damage each had suffered and each must sue separately. The plaintiffs appealed. The West African Court of Appeal held that under Order 4 Rule 2 of the Supreme Court (Civil Procedure) Rules which is in pari materia with Order 3 Rule 3 of the High Court Rules of Anambra State applicable in Enugu State joinder of plaintiffs is permitted but not joinder of causes of action.
The court held that there was no joint tort, for the damage caused to each plaintiff could only be personal to him. The suit was wrongly constituted, the court said, and a non-suit was the proper order.
The law for misjoinder of parties or causes of action in tort applies also to misjoinder of parties or causes of action in contract as in the present suit. In Smurthwaite & ors v. Hannay (1894) AC 494 the House of Lords held that the several plaintiffs who claimed to have shipped cargo in a general ship under similar bills of lading could not join in one action because each of them had a distinct and separate cause of action. In fact, the principle in Smurthwaite & or v. Hannay (supra) is identical with the principle in the case under consideration in this appeal. 15 or 13 plaintiffs who contracted individually with the appellant bank under different terms and conditions and at different times have sought to sue collectively in one suit. That cannot be. It is not the law in Nigeria as in England where the above cases were decided. In Caner v. Rigby & Co. (1896)2 Q.B. 113 a number of miners had been drowned through the flooding of a mine. The personal representatives of the deceased joined miners in one action against the proprietors of the mine, claiming that the mine had been flooded through negligence for which they (the proprietors) were responsible. It was held that the plaintiffs could not join in one action under the same rule which is similar to Order 3 Rule 3 of the High Court Rules of Anambra State. See also P. & O. Steam Navigation Co. v. Tsune Kijima (1895) A.C. 661 (Privy Council decision)It seems to me that the learned trial Judge misconstrued the provisions of Order 3 Rules 3 and 4 of the High Court Rules of Anambra State. They provide:-
Order 3 Rule “3. Where a person has jointly with other persons a ground for instituting a suit all those other persons ought ordinarily to be made parties to the suit.”
“4. Where more person than one have the same interest in one suit, one or more of such persons may be authorized by the other persons interested to sue or to defend in such suit, for the benefit of or on behalf of all parties so interested.” (Italics mine)
As regards Rule 3 of Order 3, all the plaintiffs (respondents) in this case have no JOINT interest. They have no common interest. Their interests are separate and distinct from each other. As regards rule 4 of the above Order, their interest are not the same. The interest of each of the respondents is distinct and different from the other. No one of the respondents can represent the other in the said suit in view of the distinct nature of their several interests. Representative proceeding is therefore inapplicable in the suit. The right of each of the respondents is different and distinct from the right of the other respondents. To join them together in one suit offends the rule in Amachree v. Newington (supra) and is therefore bad for misjoinder of parties and causes of action. The parties do not have a common interest or a common right. The interest of each respondent is tied to his/her contract of employment with the appellant. The terms of their contract are different from each other. Each signed a separate contract with the appellant. The principle of law governing actions in a representative capacity is that all the parties represented must have a common interest. It is not the case in the suit in this appeal. Action in a representative capacity does not apply.
The appropriate rule of court which governs the application of the appellant in the lower court is Order 3 Rule 8 of the High Court rules of Anambra State 1988. The rule provides:
“8. In case a suit states two or more distinct causes of action, but not by and against the same parties, or by and against the same parties but not in the same right, the claim may, on the application of any defendant, be amended or set aside, as justice may require”.The case states more than two distinct causes of action by different parties i.e. 15 parties before the names of two persons were struck out remaining 13 persons. It states different rights by different parties. On the application of the appellant in the court below, the course open to the court was to amend the claim or set it aside. After amending the claim by striking out the names of two of the parties the nemesis which afflicted the claim still persisted with 13 parties having different rights, interests, and remedies lumped together in one claim. This cannot be. See Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129 (1987) 18 NSCC (Pt. 11) 1194. If the case had been heard to conclusion and judgment given to the respondents the proper order would be a non-suit in accordance with the principle in Amachree v. Newington (supra). If the case has not been heard to conclusion the proper order would be to set aside the claim by striking out the suit where the claim is not amendable. In the circumstances of this case the proper order would be to strike out the suit where the claim is not amendable. In the circumstances of this case the proper order would be to strike out the claim.
This appeal therefore succeeds. I allow the appeal against 2nd-4th respondents and set aside the Ruling of the trial Judge dated 28th February, 1995.
In its place I strike out the suit No. E/513/94. The appellant will have the costs of this appeal against 2nd-4th respondent which I fix at N2, 000.00.
Other Citations: (1988) LCN/0054(CA)
